Following President Joe Biden’s nomination of Ketanji Jackson to the Supreme Court ReasonDamon Root of’s noted that she had “shown admirable judgment when it comes to criminal justice cases.” Jackson’s treatment of those charged with possessing and sharing child pornography faces a long sentence under federal law, even though they have not been in contact with any victim. This is an especially striking example.
It is dangerous to question these sentences because people mistakenly assume anyone looking at the pictures of child molestation is an actual or future child-molester. Jackson, a U.S. District Court for the District of Columbia judge, often gave sentences lower than the federal guidelines recommended. Sen. Josh Hawley (R–Mo.Former Missouri attorney general Josh Hawley (R-Mo.) believes that these decisions show an alarming pattern of “sentencing laxity for sexcriminals,” which he equatesWith “child predators.”
Hawley does not know what Hawley means. He is a smuggler who ignores crucial distinctions.
Jackson is currently a Judge on the U.S. Court of Appeals District of Columbia Circuit. He was a U.S. Sentencing Commission (USSC), from 2009 to 2014. Jackson realized that child pornography users are not always a danger to the public’s safety. Hawley citesJackson testified at a hearing that she mistakenly assumed child pornography offenders were pedophiles and that she was trying to “understand this group of non-pedophiles who acquire child pornography.”
Although Hawley suggests that Jackson is crazy about this topic, the research supports that distinction. This is something that Hawley in his rush to make political points prefers to overlook. Karl Hanson is a Senior Research Scientist at Public Safety Canada who was a prominent expert in sex offences and told me over a decade ago that there exists a separate group of offenders who only use the internet and don’t pose a risk to hands-on sex.
This observation is supported by research on recidivism. For example, a 2021 USSC survey tracked the release of 1,093 child pornography-producing inmates from prison who were freed in 2005. It was found that 3.3 percent of the “non-contact sexual offenses” had been committed three years later. This would also include child pornography possession. Only 1.3 percent were arrested for “contact sex offences.” These findings suggest this category of sexual offenders may be far safer than many people imagine, even though they weren’t reported.
Hawley doesn’t seem to be interested in these findings. He even faults Jackson for referring to “less-serious child pornography offender[s]”,” which bizarrely suggests that there is no difference among these defendants, and that this might have an impact on the sentence they get. Hawley, a lawmaker in the United States of America believes that children pornography is not punishable by an overly harsh sentence.
According to the USSC, Congress modified the guidelines directly in 2003. This was done in order to create new mandatory minimum penalties and sentencing enhancers. In consequence, the “underlying conduct that triggers such enhancements or penalties increased in severity” and was increasingly used to penalize more offenders.
It is mandatory that judges impose the minimum sentence required by statute. In the 2005 case however, United States v. BookerSixth Amendment arguments were used by the Supreme Court to rule that federal sentencing guidelines are not obligatory and can be applied as a guideline. Federal judges were able to sentence below the range of guideline sentences when justice requires it.
Jackson is not the first to use this option. The USSC discovered that 59 percent of nonproduction offenders were sentenced below the guidelines in fiscal 2019, compared with less than 16% in FY 2005. According to the USSC, there was a steady rise in sentences that were below the guideline in non-production child pornography cases.[s]Courts are increasingly recognizing that the sentence for these offenders is too harsh.
The downward deviations Hawley portrays as “sex crimes” are in fact quite common. It’s easy to understand why.
USSC points out that “current guidelines,” which are “constrained” by “statutory mandatory minimum sanctions, congressional directives and direct guideline amends by Congress”, include “a variety of enhancements that haven’t kept up with technological advancements.” “Those enhancements cover conduct that is so widespread that they are now applicable in the vast majority” For instance, in FY 2019, “over 95% of non-production child pornography criminals received enhancements for computer use and age.”
Because of congressional intervention, anyone who views, owns or shares child pornography could be sentenced for up to 20 years in federal prison. A person who did the exact same thing may receive probation, or even a one-year sentence. It is difficult for anyone to understand this situation.
Hawley’s case for Jackson against Jackson is entirely based on the assumption that Jackson was sent to prison under the existing sentence. Any downward deviations must not be allowed. He citesFor example, one defendant “had 600+ images and videos” and had many posted to a blog. Although the guidelines suggested a sentence between 151-188 months, Jackson settled for 60 months. That is the most severe sentence that law allows.
A sentence of between 12 and 15 years may be too harsh for someone who abuses children sexually, but Hawley believes it is appropriate for someone whose crime was simply collecting or sharing photos of the abuse. Hawley believes that the five year sentence for this conduct is too short. Many, including federal judges, are in agreement.
Hawley’s notion of justice doesn’t even align with that of the average citizen who serves on federal jury. James Gwin was a federal judge from Cleveland who asked jurors their opinions on the best sentence for a case in 2014 involving a defendant who had 1,500 child porn pictures stored on his computer. On average, they recommended a prison term of 14 months—far shorter than the mandatory minimum (five years), the sentence recommended by prosecutors (20 years), and the term indicated by federal sentencing guidelines (27 years).
Taking a cue from the jury, Gwin sentenced the defendant to five years, the minimum required by statute, which was one-quarter the term that prosecutors wanted but still four times longer than the jurors deemed fair. Hawley may also consider five-years insufficient. He doesn’t bother to defend this position.
Mark W. Bennett was a federal Judge in Iowa. He also found jurors disagreed with Hawley’s sentence. “Every time I ever went back in the jury room and asked the jurors to write down what they thought would be an appropriate sentence,” Bennett told The Marshall Project’s Eli Hager in 2015, “every time—even here, in one of the most conservative parts of Iowa, where we haven’t had a ‘not guilty’ verdict in seven or eight years—they would recommend a sentence way below the guidelines sentence. That goes to show that the notion that the sentencing guidelines are in line with societal mores about what constitutes reasonable punishment—that’s baloney.”
Perhaps all of those jurors have lost their mind. They might not be as affected by child molestation as Hawley and are more inclined to give “sex criminals lenient treatment.” Maybe they are able to recognize distinctions Hawley doesn’t understand, or wants to obscure.
Hawley stated that “protecting the most vulnerable should not be debated.” says. The idea of sending child predators to prison shouldn’t cause controversy. However, the question is not whether child predators should be sentenced. But it is the question of whether those who are accused should go to prison. It is notThe “child predators” should be kept in jail for at least 14 months, according to the Ohio jury recommendation, and five years, which is the minimum mandatory sentence in that case. Hawley, presumably, would prefer the federal sentencing guidelines’ 27-year maximum.
Hawley is the same in his knee-jerk reaction to any other policies affecting sex offenders. Jackson’s indiscretion about Jackson questioning the need for sex offender registry information that is publicly accessible and civil commitments of sex offenders who have served their sentence, he believes, is outrageous. There are good reasons for both policies to be challenged.
Hawley, too offended that Jackson “suggested public policy is driven by a ‘climate of fear, hatred & revenge’ against sex offenders.” However, she’s right as evidenced by Hawley’s emotion-based position.
Jackson’s partisan malignancy and complete lack of interest in this topic is compounded Hawley’s total lack of seriousness. She suggests that Jackson’s decisions regarding cases involving sexual offenders show a fondness for child predators. He surely would not apply the same standard to Republican nominees such as Justice Neil Gorsuch, who as a 10th Circuit judge wrote a decision that upheld the Fourth Amendment rights of a child porn defendant, or Justice Amy Coney Barrett, who as a 7th Circuit judge sided with a man who was convicted of failing to register as a sex offender even though that requirement had expired.
These are issues that reasonable people might disagree on. Hawley, however, is clearly not a rational person.